Ex parte SCHUMACHER et al. - Page 7

               Appeal No. 1996-1093                                                                                              
               Application No. 07/300,357                                                                                        
               art.”  In this instance, contrary to the examiner’s position, Scripture and Muller taken together, or             

               individually, would not suggest the claimed mgl promoter/operator region.                                         

                      To emphasize his position, the examiner states at page 5 of the Examiner’s Answer, “[i]n fact,             

               the mglB gene sequence of E. coli from Scripture (see Figure 3 of Scripture or Figure 12 of the instant           

               application) and the S. typhimurium [sic] mglB gene sequence of the instant application as shown in               

               Figure 1 are identical (both at the nucleotide and amino acid level), and thus they are the same gene and         

               would have been expected to have the same biological activity.”  We can not agree with the examiner’s             

               comparison of the two sequences.  Upon comparison of Scripture, Figure 3, and Figure 1 of the instant             

               application, it is readily apparent that the sequences are different in both their nucleotide and amino           

               acid sequence.  Initially, the signal sequence contains two amino acid differences: Amino Acid 15 is Leu          

               in S. typhimurium versus Met in E. coli; and amino acid 20 is His in S. typhimurium versus Ala in E.              

               coli.  Similarly, while there are regions of identity between the E. coli and S. typhimurium nucleic acid         

               sequences there are large regions that differ in sequence.  For example, compare appellants’  Figure 1,           

               sequence 633-704, with sequence 1-72 of Scripture, Figure 3.  Furthermore, Muller, states at page 41,             

               that [i]n comparing our restriction analysis of the S. typhimurium mgl operon with the corresponding              

               analysis of the E. coli operon, no similarities could be observed.  The difference in sequence and                

               restriction map between S. typhimurium and E. coli further detracts from the examiner’s position.                 


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